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Conundrums of Workplace Investigations

In this article and our accompanying podcast, we consider the various conundrums that can arise in the context of ongoing and live internal workplace investigations. For example, we consider the following:

  1. Who do you appoint as the investigator?
  2. Do you draw up specific written terms of reference for each investigation?
  3. What happens if there are parallel or ongoing criminal proceedings?
  4. How do you interview witnesses?
  5. How do you evaluate the evidence that you have collated for the purposes of a written report?

How an organisation responds to an internal complaint is crucial. Therefore, it is imperative that you chose your investigator with care. The person you appoint to conduct the workplace investigation, will be responsible for producing a core document which the organisation must be prepared to rely on. It is therefore very important that the investigator you appoint has the relevant skills and is independent. What do we mean by relevant skills? The person must be robust, they must not be biased, they must have the ability to interview witnesses, evaluate the evidence they have collated and produce a coherent written report.

The report will lay a strong foundation for what action the organisation may decide to take after completion of the report. It is important to bear in mind that the report may be subject to external scrutiny at a later date by a third-party in the context of legal proceedings. The organisation should be able to stand over the written report with confidence. Therefore, choose your investigator with care and strongly consider whether you need to appoint an independent external investigator with sufficient experience to undertake the investigation.

Terms Of Reference

This is the question that we are often asked by clients, that if they already have a specific policy and procedure, do they need additional terms of reference? Drafting specific terms of reference is always a good idea. This is particularly so, where the complaint is multifaceted. The terms of reference will enable the proposed investigator to identify exactly what it is they are being asked to investigate. This will avoid the investigation going off track at a later date. It will form the touchstone for the investigator and for the organisation so that all parties are clear as to what it is the investigator is being asked to investigate. It is important to identify whether the process is simply fact finding, is the investigator being asked to make actual findings or is it the case the investigator is being asked to establish whether there is a “case to answer” or not. Other day-to-day housekeeping issues can also be addressed in the terms of reference, such as how meetings will be held, whether Zoom will be used and whether minutes or notes of meetings will be kept. Having terms of reference creates order and ensures that the investigator does not go off track, because they will always have to refer back to the terms of reference as to exactly what they are being asked to investigate.

Criminal Proceedings

Another issue that comes up more often than you think is where there are parallel criminal proceedings ongoing at the same time as an internal workplace investigation. The recent decision of Mulcahy J in Electricity Supply Board v Sharkey [2024] IEHC 65 considered whether an employee’s right to silence can be relied on in response to an employer’s request for information. In brief, allegations had been made that certain ESB employees had been demanding cash for the completion of works. The employee refused to respond to the employer’s investigation in light of a separate ongoing criminal investigation. However, without commencing any disciplinary proceedings, ESB initiated proceedings seeking a declaration that the refusal to answer questions amounted to a repudiation of the contract of employment, such that the employee could be treated as having been summarily dismissed. The declarations sought by ESB were not allowed by the Court. An employer needs to be able to assess the competing interests of the right to silence and the importance of the employer being able to deal with the matter in advance of the Garda investigation. The outcome appears to support the proposition that there is no general right to silence in an employment context and employees are not entitled in disciplinary proceedings to simply say to their employers “prove your case”. What we take from this is that there is no hard and fast rule as to how employers respond to the fact that court proceedings are ongoing in relation to a similar issue. It would be very disruptive for an employer to have to wait until criminal or civil proceedings are processed which can take, in certain circumstances, years. Our strong advice is to take advice on each individual situation and to consider whether you need to amend your contract of employment to include a provision that the employee is obliged to put their employer on notice if such investigations or proceedings are being initiated against them.

Questioning Witnesses

Investigators need to be skilled in how to interview a witness. A witness should not be interrogated, they should be made to feel comfortable so that they are able to have an open and frank discussion. Investigators should refrain from making any comments, which could be perceived by the witness as an indication that the investigator has already made a determination on the facts. Investigators should have the requisite skill to be able to question a witness and have follow up questions as to what evidence the witness may have that supports their version of events. Preparation should be undertaken, to identify what question you may wish to ask of the witness. It is important to listen to the response from the witness. Sometimes throwaway remarks can reveal quite a lot, and investigators should be prepared to follow up on comments that may open up a very useful line of enquiry.

Evaluation of Evidence

Once all the evidence is collated it can be quite a daunting task for an investigator to be able to assess that evidence to include witness statements and any supporting documentation or contemporaneous notes. An investigator has to be able to demonstrate that they have analysed the evidence and documented a fair and reasoned determination. There are specific skills and credibility factors that can be applied to the evidence to assist an investigator to make a reasoned decision. These are often called credibility factors and can include factors such as whether there is specific corroboration, such as contemporaneous notes or minutes or emails, is there evidence of consistent or inconsistent statements, how plausible are the explanations, is there any indication of bias, or a motive to lie, what is their demeanour like, how do they respond to questions, did the witness observe any relevant interaction, etc. This will be extremely helpful in the context of being able to explain to both parties why a decision has been made if the decision is in fact well-reasoned and documented in a detailed report.

If you require any assistance in conducting an internal workplace investigation and/or if you require an independent workplace investigator, please do not hesitate to contact one of the team at www.ccsolicitors.ie. The team are all experienced HR legal advisors and workplace investigations as well as accredited investigators with the U.S. based Association of Workplace Investigations (AWI).